Morkaya v Parkinson; Parkinson v Morkaya [2008] NSWSC 642

New South Wales Supreme Court

CITATION : Morkaya v Parkinson; Parkinson v Morkaya [2008] NSWSC 642

HEARING DATE(S) : 20 June 2008

JUDGMENT DATE : 20 June 2008

JURISDICTION : Equity Division

JUDGMENT OF : Palmer J

EX TEMPORE JUDGMENT DATE : 20 June 2008

DECISION : Stay refused.

CATCHWORDS : APPEAL – STAY OF JUDGMENT – co-lessee ordered to pay part of outstanding rent pursuant to interlocutory asset preservation order – whether stay should be granted pending appeal – whether stay in the interests of justice.

CATEGORY : Procedural and other rulings

2905/08 Aydan Morkaya (Plaintiff) PARTIES : David Anthony Parkinson (Defendant) 2945/08 David Anthony Parkinson (Plaintiff) Aydan Morkaya (Plaintiff)

FILE NUMBER(S) : SC 2905/08; 2945/08

COUNSEL : Ms V.J. Snelling (Sol) (Ms Morkaya) A.D. Crossland (Mr Parkinson)

SOLICITORS : Sayan & Associates (Ms Morkaya) Arnotts Solicitors (Mr Parkinson)

2905/08 Morkaya v Parkinson 2945/08 Parkinson v Morkaya

JUDGMENT – Ex tempore 20 June, 2008

1 By Notice of Motion filed in Court today, the Defendant, Mr Parkinson, seeks an order that the order of Macready AsJ in these proceedings made on 13 June 2008, requiring the Mr Parkinson to pay the sum of $10,000 towards rent on certain premises, be set aside. The Motion also seeks an order that, pending the appeal, his Honour's order for the payment of money be stayed. It is only the second order that is pressed today. The circumstances may very briefly be recounted thus. 2 The Plaintiff, Ms Morkaya, and Mr Parkinson were in a relationship which has broken down. In the course of that relationship they undertook certain business activities together. They were the directors and shareholders of a company. The business which was operated by the company was carried on in leased premises. Ms Morkaya and Mr Parkinson as co-lessees and, therefore, co-obligors under the lease. At some stage, Mr Parkinson was no longer involved with the business carried on in the leased premises. He has moved to other premises and taken certain trading activities of the business with him. 3 Ms Morkaya has commenced proceedings under the Property (Relationships) Act 1984 (NSW) for the adjustment of property interests between herself and Mr Parkinson. There are also proceedings, in which Mr Parkinson is the plaintiff and Ms Morkaya is the defendant, as to their respective interests in the company of which they were shareholders and directors. 4 Ms Morkaya filed a Notice of Motion on 22 May 2008 in which she sought certain interim relief. One of the interim orders sought was an order that Mr Parkinson cause a sum equivalent to not less than one-half of the rental payments outstanding in respect of the leased premises to be paid to the lessor's agent in partial satisfaction of the parties' personal liability for unpaid rent under that lease. 5 Mr Crossland of Counsel, who appears for Mr Parkinson, disputes the full amount asserted by Ms Morkaya as outstanding for rent, but concedes that, as at the date that Mr Parkinson left the leased premises, there was outstanding a sum in excess of $40,000 for unpaid rent. 6 The Motion came on for hearing before Macready AsJ on 13 June 2008. His Honour dealt with a number of matters, the first of which was clearly in the nature of an asset preservation order. It was to do with the continued operation of the internet website for one of the businesses, the business that was then apparently being conducted by Ms Morkaya alone. 7 Mr Parkinson, apparently, had initially set up the website for that business as well as a website for his own business. He had the access password to both sites. Without that access, Ms Morkaya was unable to trade through the website relating to the business which she had retained. 8 His Honour made an order which was, obviously, intended to preserve the parties' respective positions pending a final hearing. In that context, he made an order that Mr Parkinson organise to separate the passwords for the two websites under his control, to the intent that the website for Ms Morkaya's business should be accessible by her for operation. His Honour said that if that process involved the expenditure of funds, those costs were to be paid by Ms Morkaya. His Honour then went on to deal with the question of arrears of rent of the leased premises. 9 His Honour said that, by the time that Mr Parkinson had ceased paying rent and left the leased premises site, there were outstanding payments of some $73,000. As I say, for the purposes of this application, Mr Crossland concedes that an amount in excess of $40,000 was outstanding. 10 Then his Honour had regard to the fact that when Mr Parkinson left the premises, he took some $14,000 from the account of the company which was operating the business on those premises. His Honour referred to a guarantee in support of the parties' obligation to pay rent under the lease. His Honour came to the conclusion that: "Without in any way prejudicing or in any way duplicating the liabilities which the parties individually have in respect of payment of the rent I think it is appropriate that I make an order that the defendant pay within seven days to the agent of the landlord of the premises C B Richard Ellis the sum of $10,000 and I so order."